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Defining the Nature and Limits of Presidential Powers in the Transitional Constitution of South Sudan: A Politically Contentious Matter for the New Nation

  • Mark A W Deng (a1)

Abstract

This article reflects on the Transitional Constitution of South Sudan and the political tumult in which it has landed the country. In particular, it looks at the contentious provisions of article 101(r) and (s) of the constitution, which give the president powers to remove an elected state governor and appoint a new governor, upon the occurrence of a crisis whose nature is undefined in the constitution and remains intellectually inconceivable. The article argues that these provisions concentrate political power in the hands of president, to the extent that they undermine the development and maintenance of democracy and the rule of law in the country. In conclusion, it argues for the adoption of a democratic constitution and a federal system of government as the solution to the concentration of political power in Juba.

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* South Sudanese lawyer, residing in Australia and currently pursuing a PhD at the University of Queensland, Australia. Special thanks to Counsel David Deng for the helpful comments he provided on the article. Further revision of this article has been due to the suggestions made by Counsel David Deng, to whom the author is indebted.

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1 The Transitional Constitution of the Republic of South Sudan 2011 (the Transitional Constitution).

2 The SPLM is a liberation movement that fought and liberated South Sudan from the tyranny in Khartoum. It has been the official government of South Sudan since the country attained sovereignty in 2011.

3 The Transitional Constitution, art 97(1), (2) and (3).

4 Id, art 2.

5 JA Ramba “The drive in the SPLM's draft transitional constitution” (13 May 2011) Sudan Tribune, available at: <http://www.sudantribune.com/spip.php?article38899> (last accessed 30 December 2016).

6 Kameir, WThe political economy of South Sudan: A scoping analytical study” (2011) The African Development Bank 1 at 19.

7 Ibid.

8 Bellish, JIn principle but not in practice: The expansion of essential state interests in the doctrine of necessity under customary international law” (2012) 41/1 Denver Journal of International Law & Policy 127 at 148.

9 PG Manyuon “Genesis of the Lakes State crisis (part 1)” (30 September 2014) Sudan Tribune, available at: <http://www.sudantribune.com/spip.php?article52586> (last accessed 30 December 2016).

10 MAW Deng “Lawlessness and its rule of law implications in South Sudan” (24 December 2012) The Sudd Institute, available at: <http://www.suddinstitute.org/publications/show/lawlessness-and-its-rule-of-law-implications-in-south-sudan/> (last accessed 30 December 2016).

11 G Bognetti et al “Constitutional law: Unitary and federal systems” Encyclopaedia Britannica, available at: <https:// www.britannica.com/topic/constitutional-law/Unitary-and-federal-systems> (last accessed 30 December 2016).

12 Ibid.

13 J Abbink “Ethnic-based federalism and ethnicity in Ethiopia: Reassessing the experiment after 20 years” (2011) 4/5 Journal of Eastern African Studies 596 at 599.

14 Ethiopian Constitution 1994, art 39.

15 Teshome, W and Zahorik, JFederalism in Africa: The case of ethnic-based federalism in Ethiopia” (2008) 2/5 International Journal of Human Sciences 2 at 22.

16 A Follesdal “Federalism” (2014) Stanford Encyclopaedia of Philosophy, available at: <http://plato.stanford.edu/entries/federalism/> (last accessed 30 December 2016).

17 Ethiopian Constitution 1994, art 47(1).

18 Id, art 50(3) and (8).

19 M Brandt et al Constitution-Making and Reform: Options for the Process (2011, Interpeace) at 28.

20 Ibid.

21 The Transitional Constitution, art 200(1) and (2).

22 “The drafting and acceptance of the constitution” (11 April 2016) South African History Online, available at: <http://www.sahistory.org.za/article/drafting-and-acceptance-constitution> (last accessed 30 December 2016).

23 Hofman, JThe constitutional assembly database project: Resurrecting a database ten years on” (2007) 35/1 International Journal of Legal Information 78 at 79.

24 Hart, VDemocratic constitution making” (2003) United States Institute of Peace 2 at 7.

25 Inhonvbere, JHow to make an undemocratic constitution: The Nigerian example” (2000) 21/2 Third World Quarterly 343 at 346.

26 Human Rights Committee “Views: Communication no: 205/1986” 46th sess, UN doc CCPR/C/46/D/205/1986 (4 November 1991) 40, para 1.

27 Id at 41, para 3.2.

28 Id at 42, para 6.

29 Elkins, T and Blount, JThe citizens as founder: Public participation in constitutional approval” (2008) 81/2 Temple Law Review 361 at 370.

30 Hart “Democratic constitution making”, above at note 24 at 3–4.

31 Ibid.

32 Elster, JForces and mechanisms in the constitution-making process” (1995) 45 Duke Law Journal 364 at 395.

33 Banks, AMExpanding participation constitution-making: Challenges and opportunities” (2008) 49 William and Mary Law Review 1043 at 1044.

34 Ibid.

35 Hart, VConstitution making and the right to take part in a public affair” in Miller, LE and Aucoin, L (eds) Framing the State in Times of Transition: Case Study in Constitution Making (2003, United States Institute of Peace) 20 at 38.

36 Ibid.

37 Brandt et al Constitution-Making and Reform, above at note 19 at 21.

38 Ibid.

* South Sudanese lawyer, residing in Australia and currently pursuing a PhD at the University of Queensland, Australia. Special thanks to Counsel David Deng for the helpful comments he provided on the article. Further revision of this article has been due to the suggestions made by Counsel David Deng, to whom the author is indebted.

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Journal of African Law
  • ISSN: 0021-8553
  • EISSN: 1464-3731
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